1 2025:CGHC:55762 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 325 of 2018 Judgment Reserved on 13.08.2025 Judgment Delivered on 17.11.2025 1. Rangu (Died) Through Lrs S/o As Per Hon’ble Court Order Dated 26.07.2024 1.1 - Bihari Lal S/o. Late Rangu Rajwar Aged About 55 Years Occupation - Cultivator, R/o. Village - Odgi, Tahsil - Baikunthpur, District - Koriya (C.G.) 1.2 - Harinandan S/o. Late Rangu Rajwar Aged About 53 Years Occupation - Cultivator, R/o. Village - Odgi, Tahsil - Baikunthpur, District - Koriya (C.G.) 1.3 - Harilal S/o. Late Rangu Rajwar Aged About 50 Years Occupation - Cultivator, R/o. Village - Odgi, Tahsil - Baikunthpur, District - Koriya (C.G.) 1.4 - Laxmaniya W/o. Dubrajram, D/o. Late Rangu Rajwar Aged About 58 Years R/o. Village - Kenapara, P.S. And Tahsil - Baikunthpur, District - Koriya (C.G.) 2. Budhram S/o Shobhit Ram Rajwar Aged About 49 Years R/o Village Krishnapur Police Station And Tahsil Surajpur District Surajpur Chhattisgarh. ( Defendants ), District : Surajpur, Chhattisgarh ... Appellants(s) versus 1. Sukhmen D/o Late Pusau Rajwar Aged About 59 Years R/o Village Amritpur Tahsil Baiakunthpur, District Koriya Chhattisgarh. ( Plaintiff ), District : Koriya (Baikunthpur), Chhattisgarh 2. Amrawati W/o Late Mohelal Aged About 25 Years Caste Rajwar , R/o Village Katgodi, Police Station And Tahsil Sonhat, District Koriya Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.11.17 11:31:23 +0530 2 3. The State Of Chhattisgarh Through The Collector , Surajpur Chhattisgarh. ( Defendants ), District : Surajpur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Ashok Kumar Shukla, with Ms. Shivani Singh and Ms. Mamta Gendle, Advocates For Respondent(s) : Mr. S.A. Ansari, Advocate For State : Mr. Kalpesh Ruparel, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment 1. Heard on I.A. No.12 of 2025 under Order 1 Rule 10 CPC for arraying the following persons namely Lalit Kumar, Sunil Kumar and Piri Bai as respondent No. 4 to 6 alleging that they are the owner of the ancestral property which subject matter of the suit/appeal and they were never arrayed as party to the case filed by counsel for respondent No.1. 2. Learned counsel for the appellant vehemently objected the same and contended that in the application no material foundation is placed to demonstrate that they are owner of the ancestral property and in fact respondent No.1/plaintiff has filed the suit without arraying them as party to the case and when the appeal at the stage of final hearing the application has been filed to delay the proceeding and would pray for rejection of the application. 3. Considering the submissions of both the parties, the application under Order 1 Rule 10 CPC to array proposed respondent No. 4 to 6 is deserves to be rejected as the plaintiff while filing the suit has not made them party to the case, if they are necessary party it is for the plaintiff to make them party and due to nonjoinder of necessary party the suit is liable to be rejected. But since the appeal is at the final stage itself therefore, instead of 3 dismissing the suit for want of necessary party, the appeal is decided on merit. Even the plaintiff has not pleaded as to how they are the owners of ancestral property. In absence of any pleading, relevant document only on the basis of balled statement the proposed respondents cannot make party to the case thus the interim application under Order 1 Rule 10 CPC is rejected. 4. This is defendant No.1 Second Appeal preferred under Section 100 of CPC against the judgment and decree dated 21.02.2018 passed by 3rd Additional District Judge Surajpur in Civil Appeal No. 17-A/2011 arising out of judgment and decree dated 04.05.2010 passed by 2nd Civil Judge, Class-II, Surajpur in Civil Suit No. 126-A/2008 by which learned District Judge has partly allowed the appeal and declared the registered sale deed dated 17.01.1995 to the extent of area 0.006 hectares which has been sold by defendant No.1 excess to his share as null and void. 5. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 126-A/2008 before the trial Court. 6. The appeal was admitted on 03.05.2019 on the following substantial questions of law:- (i) Whether the finding of the lower Appellate court delcaring the registered deed of sale dated 17.01.1995 (Ex.P-1) executed by defendant No. 1(Rangu Ram) in favour of defendant No.3 (Budh Ram) as null and void to the extent of 0.006 hectare while reversing the finding of the trial court is perverse? (ii) Whether finding of the lower Appellate Court decreeing the plaintiff’s claim in absence of substitution of the legal representatives of plaintiff No. 2 (Jagmohini) who expired during he pendency of the appeal on 10.03.2012 is perverse. 7. Brief facts of the case reflected from the record are that the plaintiffs have filed a suit for declaration, possession and injunction before learned Civil Judge Class-2 Surajpur mainly contending that ;- 4 (a) Father of the plaintiff and defendant No. 2 Pusau was in possession having title over the land bearing khasra Nos. 550,557, 559 area 0.053, 0.045 and 0.020 hectares situated at village Krishnpur, Tahsil Surajpur District Surajpur. The dispute relates to land bearing khasra No. 557 and 558 which hereinafter referred to suit land. The plaintiff has also mentioned genealogy with the plaint according to which late Thakur Rajwar who died before Survey Settlement has three sons namely Pusau, Nanka and Bhukhal. Bhukhal has separated him from Pusau and Nanka and relinquished his share in favour of Pusau and shifted to other village and enjoyed his right as sole owner of the property till his life time. Pusau has three daughters Sukhwari, Jagmohani and Sukhmen (Plaintiffs) and Bhukhal has one son Ranguram (Defendant No.1). (b) It is contended that about 15 years ago, the defendant No.1 came to suit land with intention to take possession then Pusau and the defendant No.2 drove him from the suit land since than the defendant No. 1 never come there nor he objected possession of late Pusau and plaintiff No.2. It is also contended that after marriage, elder daughter of late Pusau were residing in their matrimonial house and late Pusau kept the plaintiff No. 2 with him as Gharjihin Putri and her husband as Gharjiha (son-in-law) and gave his entire land for their livelihood. Pusau died in the year 1993 since than the plaintiff No.2 is in sole owner of the land cultivating the said land. (c) It is further contended that the on 20.06.1995 the defendant No.3 came to the suit land and started interfering possession of plaintiff No.2 and told that he had purchased the land from defendant No.1 and taking advantage the fact she being widow tried to dispossess her from the suit 5 land and established flour mill and paddy threshing mills on the suit land. On the action of defendant No. 3, the plaintiff No. 2 enquired the matter from the Office of Sub Registrar, Surajpur then it was came to her knowledge on 27.06.1996 the land was sold on 17.01.1995 through registered sale deed which has necessitated the plaintiff to file a suit for declaration of title, permanent injunction, possession and prayed for declaring the sale deed as null and void. 8. The defendants have filed the written statement denying the allegation made in the plaint and also filed counter claim mainly contending that:- (a) Bhukhal had never give up his share, nor he shifted to Badar Dabha (Odgi) even he went to earn Odgi for his livelihood and during his lifetime he was in possession of his share and after his death his son Ranguram was in possession the suit land as legal heir. It is stated that Bhukhan has never relinquished his share in favour of Pusau situated at village Krishnapur and the suit land is self acquired property of late Thakur Rajwar, in fact the suit property all the three sons are in joint possession of the suit property and before 40 years of filing the suit after death of Nanhka's , late Pusau divided the suit land with his brother Bhukhal, as such the said partition took place 30 years ago, and since then, Pusau and Bhukhal were residing in their respective shares. It is also stated that after marriage Jagmohini and Sukhmen went to their matrimonial house and Sukavaro being issueless, she started living with Pusau since than she is cultivating the suit land and Pusau had given the entire property of his share to Sukavaro. (b) It is also stated that Ranguram was the sole legal heir of Bhukhal was in possession of the suit land bearing khasra No. 557 measuring 6 0.045 hectare and khasra No. 559 measuirng 0.020 hectare on the basis of mutual partition, he had sold the land to defendant No.3 through registered sale deed date 17.01.1995 for sale consideration of Rs. 3,000/- each in presence of two witnesses Hosaram and Aminlal since than the defendant No.3 is in possession of the suit land and established there flour mill and paddy threshing there for their livelihood as the document submitted by him is valid document. In fact the plaintiffs never remained in possession of the suit property as such no question of dispossessing them are arises and prayed for dismissal of the suit. (e) In the counterclaim the defendants have prayed for declaring the defendant No. 2 and 3 as titleholder and possession of the entire suit property and sell deed dated 17.01.1995 be declared as legal and the plaintiff be kindly restrained from interfering from the peaceful possession of the suit land. (f) The plaintiff No. 2 has filed reply to the counterclaim contending that Pusau had never kept Sukhvaro as Gharjihin Putri in fact he has kept Jagmohani plaintiff No. 2 as Gharjihin Putri and gave his land to plaintiff No.2, as such she resided there with her husband Balsai. It has also been contended that late Bhukhal never remained in possession of the suit property and duirng his life time his relinquished his share in favour of Pusau and Ranguram was never in possession of the suit land. It has also been contended that due to illness plaintiff No. 2, the defendant No.3 has forcibly taken possession of the suit property which has necessitated the plaintiff to file the suit. 9. On the pleading of the parties, learned trial Court has framed as many as five issues. The plaintiff to substantiate her claim has examined herself as 7 (PW-1), Manglu Ram (PW-2), Mohar Sai (PW-3) and exhibited documents sale deed (Ex.P-1), records of right (Ex.P-2), copy of B-1 (Ex.P-3), copy of B-1 (Ex.P-4), mutation register (Ex.P-5). The defendant No.3 to substantiate his claim has examined himself as (DW-1), Ranguram (DW-2), Aminlal (DW-3) and exhibited documents copy of Sarguja State Settlement (Ex.D- 1), renumbered document (Ex.D-2), registered sale deed (Ex.D-3), certificate (Ex.D-4), Identity card (Ex.D-5), Electricity Bill (Ex.D-6 and 7). 10. Learned trial Court vide its judgment and decree dated 04.05.2010 has dismissed the suit filed by the plaintiff by recording its finding with regard to issue No. 1 and 3 that the plaintiff No.2 was neither in possession of the suit property nor she was sole title holder. Learned trial Court while recording the finding with regard to issue No. 2 has recorded its finding that since late Pusau has no son and all daughters have claimed that they are Gharjihan Putri but neither Sukhmen and Jagmohani have able to establish that they are Gharjihan Putri. The trial Court has also recorded its finding that defendant No. 3 Rangu has right to sold the property in favour of defendant No. 3 accordingly answered the issue No.2 against the plaintiff. The learned trial Court while deciding issue no. 4 has held that defendant No. 2 and 3 are in possession of the suit property, accordingly the suit was dismissed but counter claim was allowed and it has been declared that the defendant No. 2 and 3 are in possession and title holder of the suit land bearing khasra No. 557 and 559, as such the plaintiff or their representatives have no right to interfere in possession of defendant No. 2 and 3. Against that order, the plaintiff No.1 Sukhimen has preferred first appeal under Section 96 CPC before learned District Judge, Surajpur who vide its judgment and decree dated 21.02.2018 has partly allowed the 8 appeal and recorded it finding that the defendant No.1 sold the land beyond the limit of his share, as such it is not proved that the suit property belongs to defendant No. 2 and 3. Learned First appellate court has also recorded its finding that the trial Court in its judgment in para-20 has recorded its finding that land bearing khasra No. 550 is belongs to three daughter of Late Pusau and Bhukhal son Ranguram despite that sale deed executed on 17.01.1995 has not been declared illegal and has wrongly given its finding that the suit property belongs to defendant No. 2 and 3 only. Accordingly, it has partly allowed the appeal and has declared the sale deed dated 17.01.1995 to the extent 0.006 hectares to be illegal and also directed that plaintiff is entitled to receive the land area admeasuring 0.006 hectare from defendant No. 2 and 3 who will immediately give the vacant possession to the plaintiff. 11. Being aggrieved with the judgment and decree passed by the First Appellate Court, the defendant No.1 has preferred the Second appeal under Section 100 CPC which has been admitted on the afore stated substantial question of law. 12. The respondent No.1/plaintiff has filed cross appeal under Section 100 CPC read with order 41 Rule 22 CPC on 25.09.2024 with delay of 2400 days along with application under Section 5 of the Limitation Act which has been condoned by this Court on 10.03.2025. 13. Learned Counsel for the appellant/defendants would submit that the lower appellate court has committed illegality in partial dedclaring the sale deed dated17.01.1995 as null and void as the plaintiff and defendants are triable and Pusau has kept Sukhvaro as Gharjihan Putri, and the triable are not governed by the Hindu Succession Act and there is custom in the triable 9 that Gharjihan daughter or daughter is not entitled to inherit property of his father only male is entitled to get share in the property owned by the father. Thus impugned judgment is illegal and substantial question of law No.1 deserves to be answered in favour of the appellant. He would further submit that trial Court has committed illegality in granting decree of possession and perpetual injunction whereas possession of the plaintiff has not been proved. It has also been contended that learned first appellate Court has erred in partly allowing the appeal despite the fact that the plaintiff No.2 Jagmohini expired during the pendency of the appeal therefore, such decree being nullity as no legal representatives of dead party was on record within stipulated time period. To substantiate his submission, he would refer the judgment of Hon’ble Supreme Court in the cases of Gurnam Singh (dead) through Legal Representatives and others vs. Gurbachan Kaur (dead) by legal Representatives reported in 2017 (13) SCC 414 and he prayed that appeal may be allowed by setting aside the judgment & decree passed by the first Appellate Court in favour of defendants and judgment & decree passed by learned trial court be upheld. 14. Learned counsel for respondent No.1/plaintiff would submit that the trial court as well as Appellate Court have committed illegality in deciding the fact that residential house on which late Pusau resided alone, though there was separate arrangement has been made, then how will the said house is jointly occupied by the appellants and this fact has already been accepted by the defendant No.1 in his statement that he does not have possession of the suit land and from the deposition of the plaintiff it is quite vivid that the plaintiff has been forcefully disposed from the house and the suit land. This vital evidence has been ignored by both the Courts below as such it has 10 been prayed that the sale deed dated 17.01.1995 be declared as null and void as the finding of the lower appellate Court on issue No.1 is perverse. He would further submit the lower appellant Court has committed illegality in not allowing the appeal as such substantial question of law is required to be framed which is sine qua non for admission of Second Appeal under Section 100 CPC and the cross appeal is also deserves to be admitted. 15. Considering the submission made in the cross appeal it is quite vivid that learned counsel for respondent No.1 make an attempt to pursue this Court to appreciated the evidence and material on record but unable to point any perversity or illegality which warrant interference by this Court as such no substantial question of law is required to be framed therefor, the cross appeal is deserves to be dismissed. Accordingly, it is dismissed. 16. I have heard learned counsel for the appellant and perused record of the Courts below with utmost satisfaction. Finding and discussion of question of law No.1 :- 17. The submission made by the appellant that since the parties before the trial Court are Tribal, therefore, they are not governed by the Hindu Law, as such, daughters are not entitled to inherit the ancestral property is liable to be rejected as very recently the Hon’ble Supreme Court in case of Ram Charan & Others vs. Sukhram & Others in Civil Appeal No. 9537 of 2025 reported in INSC 865 has considered the issue with regard to right of the daughter who belongs to Tribal to inherit the property has taken into consideration the Central Provinces Laws Act, 1875 though the said Act has been repealed in the year 2018 but the effect of Section 4 of repealing Act, it is quite vivid that no right having been accrued prior to the repeal of the Act shall be affected thereby. The record of the case demonstrates that the 11 parties to the instant lis are neither governed by Hindu nor Muslim laws and, therefore, would be covered by Section 6 of the 1875 Act. So, the right having been accrued in favour of the plaintiffs’ after death of her father, which was approximately 15 years before the filing of the plaint became crystallized and would not be affected by the fact that the Act was no longer in the statute book. This Act of 1875 is applicable in the present facts and circumstances of the case with full force. The Hon’ble Supreme Court in case of Ram Charan (supra) has held in paragarphs 26 to 28 as under: “26. This discussion on equality under Article 14, which, needless to state, includes the aspect of gender equality within its fold will be, in our view, incomplete without reference to the first and most commendable step taken under the Hindu Law by way of the Hindu Succession (Amendment) Act, 2005 which made daughters the coparceners in joint family property. The object and reasons as stated in the Bill are instructive in the general sense and we reproduce the same with profit : “…The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975…” (Emphasis supplied) 27. Similarly, we are of the view that, unless otherwise prescribed in law, denying the female heir a right in the property only exacerbates gender division and discrimination, which the law should ensure to weed out. 28. Granted that no such custom of female succession could be established by the appellant-plaintiffs, but nonetheless it is also equally true that a custom to the contrary also could not be shown in the slightest, much less proved. That being the case, denying Dhaiya her share in her father’s property, when the custom is silent, would violate her right to equality vis-à-vis her brothers or those of her legal heirs vis-à-vis their cousin.” 12 18. From the factual matrix as projected by the plaintiff and considering the provisions of law, it is quite vivid that the issue raised in this appeal is squarely covered from the decision of the Hon’ble Supreme Court in case of Ram Charan (Supra) wherein the Hon’ble Supreme Court has held that daughters are entitled to inherit the ancestral property, therefore, the findings recorded by the learned First Appellate Court that all the daughter Pusau, Plaintiff No.1 and 2 and defendant No.2 along with son of Bhukhal Ranguram are are joint owner of the suit property as rightly modified the judgment and decree of the trial Court and declared the sale deed dated17.01.1995 to the extent of 0.006 hectares is null and void is legal, justified and the substantial question of law framed by this Court deserves to be answered against the appellant and in favour of respondent No.1. Finding and discussion of question of law No.2 :- 19. To examine substantial question of law No.2 this Court has gone through with the order sheet of the Lower Appellate Court and it was revealed that immediately after death of Jagmohani on 08.07.2013 an application under Order 22 Rule 4 CPC was filed and the appeal was kept pending for reply and argument on the said application. Thereafter, on 26.11.2013 one application under Section 5 of the Limitation Act was filed thereafter the matter was adjourned for argument and finally on 30.12.2014 learned First Appellate Court has allowed the application under Order 22 Rule 4 CPC by bringing legal heirs of Jagmohani who died on 10.12.2011 and her daughter has been arrayed. The learned Lower First appellate Court has also condoned the delay in brining the application for legal representatives on record which was supported by 13 affidavit and the said application was allowed after payment of cost of Rs 500/- and thereafter finally the judgment and decree was passed on 21.12.2018. The appellant has never challenged the said order dated 30.11.2014 condoning the delay in preferring the application even otherwise it is well settled legal position of law that the Court while condoning the delay should not adopt hyper technical view, to ensure substantial justice, unless any right which has been accrued in favour of the any party is adversely effected by condoning the delay. In the present case, the plaintiff’s appeal is pending and no right of any party has been finally adjudicated by the First Appellate Court, as such no right has been accrued of any party. This Court cannot lose site of the fact that in the State of Chhattisgarh the litigant are rustic villagers and tribal and they are not aware of legal provision as such the learned first appellate Court has not committed any illegality in condoning the delay. The Hon’ble Supreme Court in the case of Pathapati Subba Reddy (Died) by Lrrs and others vs. The Special Deputy Collector (LR) reported in 2024 INSC 286 has held as under:- 16. Generally, the courts have adopted a very liberal approach in construing the phrase ‘sufficient cause’ used in Section 5 of the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors.2, this Court in advocating the liberal approach in condoning the delay for ‘sufficient cause’ held that ordinarily a litigant does not stand to benefit by lodging an appeal late; it is not necessary to explain every day’s delay in filing the appeal; and since sometimes refusal to condone delay may result in throwing out a meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon technical considerations and if the delay is not deliberate, it ought to be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of ‘sufficient cause’ for not filing the appeal in time, is a condition precedent for exercising the discretionary 14 power to condone the delay. The phrases ‘liberal approach’, ‘justice oriented approach’ and cause for the advancement of ‘substantial justice’ cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter of fact dead matters to be revived and re-opened by taking aid of Section 5 of the Limitation Act. 26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence; (vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision. 20. 20. The respondent No.1 has also filed application under Order XXVI rule IX of CPC for appointment of Commissioner to make local investigation as on the suit land a residential house has been construed during life time of Thakur Prasad in which Pusau was living with father of respondent No.1 and defendant No.3 is running flour mill in the suit land 15 whereas both the Courts below have stated that the suit land is open land. This application is deserves to be rejected as all the contentions which has been raised in this application can be very well agitate in the eventuality of filing of execution application as per provision of CPC. Thus I.A. No. 10 of 2024 is deserves to be rejected and it is rejected. 21. Considering the submission, evidence and material on record and perusal of the order passed by the learned Courts below there is no perversity in the impugned judgment and decree warranting interference by this Court. The Second appeal as well as Cross appeal filed by the respondent No.1 deserves to be dismissed and accordingly, it is dismissed. No order as to costs. 22. The interim order passed by this Court on 03.05.2019 is vacated. 23. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Santsoh